On Motion, for Rehearing.
In sustaining appellees’ objection to the proffered testimony of numerous witnesses to the effect that Nancy Atkins, five years before her death, had, by parol, given the “sixth tract” involved in this suit to her son W. H. Atkins, in consideration' that he would, at her death, relinquish all claim of inheritance in her estate, that she had turned the gift over to him, that he took immediate possession; made valuable improvements, and lived thereon to the exclusion of the donor until her death, the trial court rejected the proffered testimony because it tended to alter or change the legal effect of a right created by a deed executed and delivered to W. H. Atkins by the remaining heirs of Nancy Atkins after the death of the donor, to the specific “sixth tract” involved, here, and that he, in, turn and in like manner, conveyed to the other heirs the remaining tracts belonging ■ to the estate of Nancy Atkins. The deeds, pertinent here, recite.: “Whereas, Mrs. Nancy Atkins died in Dallas County, Texas, on or about the 10th day of April, A. D. 1937 and at the time of her death died seized and possessed of certain real estate, and, whereas, Mrs. Nancy Atkins left surviving her five (5) sons, to-wit: A. R. Atkins, W. H. Atkins, E. L. Atkins, Dallas Atkins, and Commo Atkins, and two granddaughters, who are the daughters of Daisy Atkins Vanderslice, to-wit: Lucille Renfro and Frances Smith. * * * in consideration of the sum of One ($1.00) Dollars to its (above named heirs except W. H. Atkins) paid and secured to be paid by W. H. Atkins, the receipt of which is hereby acknowledged and confessed, and the further consideration of a division and partition of the property and estate of Nancy Atkins, deceased, between grantors and grantee, have granted, sold and conveyed and by these presents do grant, sell and convey unto the said W. H. Atkins” Etc., the “sixth tract” described by metes and bounds. The deeds to each of the other heirs were of similar import.
Obviously, appellee Webster was accorded no ■ right created by the deeds, and he lost none by their execution; he was not a party thereto. Other than the *416recitals that Nancy Atkins died seized and possessed of the property, that the parties thereto were her heirs, and that they executed the deeds in division and partition of her estate, we think the deeds evidence W. H. Atkins’ claim of right to the land through gift of his mother. The deed to him by the other heirs conveying the identical tract of land involved in the gift, and he in turn conveying to the other heirs the remaining portion of the estate, tends strongly to corroborate the gift, as sought to be established by the rejected testimony. The recitals of inheritance were not conclusive against appellants’ claim of title, and they were not estopped in alleging and proving W. H. Atkins’ title by gift.
The trial court having peremptorily instructed a verdict against appellants, and the pleadings and rejected testimony in-' volving the title by parol, also of homestead, raising factual issues, we have concluded that we were in error in rendering judgment in favor of appellant on reversal. Therefore, the action of this Court rendering the judgment is set aside, and the cause is reversed and remanded to the court below for trial on its merits.
Reversed and remanded.